Legal Challenge to FBI's Keystroke Sniffing 217
Factomatic writes: The "Associated Press is reporting that lawyers for" an alleged "Mafia boss who used PGP will argue on Mon. Jul. 30 that keystroke logging is an illegal wiretap after the FBI bugged his computer to get his password to decrypt his files. The case has major implications for privacy rights and other electronic surveillance techniques like Carnivore. The Electronic Privacy Information Center (EPIC) has put the case documents online."
Meanwhile, a spending bill proposes a
$7 million increase
in the FBI's budget for defeating encryption (and stego).
Main legal question is the scope of the warrant (Score:2)
Re:The FBI will use this to fight encryption (Score:2)
I find this slightly ironic, as you have no PGP key in your user info. What are you waiting for ?
Re:they DIDN'T have a judge's approval! (Score:5)
They had a search warrant. The distinctin is a technical one, as they indicate that the "bug" did not transmit anything. It doesn't heed to usual wiretapping SOP, as it was placed on the PC in one warranted search, and the data was picked up at another. As such, the agents did not have the ability to choose not to intercept unrelated data, as they would in a standard wiretap (they have to cease listening after 1 minute if there is nothing relevant to the case said, and wait 1 hour before resuming listening, or something like that). Maybe it's easier to think about it like this: what if the FBI got a warrant, broke in while he wasn't there, stole the key to his safety deposit box, made a copy of it, and replaced it without him knowing. It's just different in that they had to come back later to pick up the copy of the key. They aren't relying on any communications intercepted by the key-capture to make their case, only his password, like his safety-deposit box key.
Re:they DIDN'T have a judge's approval! (Score:3)
What is the primary difference between a search and a wiretap? Why do we more evidence before a judge can authorize a wiretap than before he/she can authorize a search?
1) A search is a one-time event, whereas a wiretap represents ongoing surveilence. As such, a search tends to capture a small amount of private, transitory data (i.e. conversations, web cache, etc) while a wiretap tends to capture and catalog a large amount of this sort of information. This is a much greater invasion of privacy.
2) A search captures narrowly tailored information, whereas a wiretap casts a very wide net. A search warrent that authorized the authorities to look for root kits on your machine ought not allow them to page through your Quicken data. (I realize that the standards for searching a hard drive haven't yet caught up to the standards that apply to the physical realm, but I'm making a philosophical argument.) A wiretap wouldn't permit that level of distinction.
3) A search does not require, or generally permit, surreptitious entry. Police officers come to your door, announce that they have a search warrent, and enter. When someone searches your home, they have to provide you with a receipt of the items taken. Everything is done very much out in the open. A wiretap, on the other hand, requires that the police don't alert anyone to their entry when they install the bug. The open nature of the search provides a suspect with context that may be useful should he have to exercise his Constitutional right to confront his accuser at trial. In addition, it provides a useful check on government power since it permits outsiders to analyze the pattern and practice of searches to determine whether there's an abuse of power. The FBI could get away with a lot of abuses by wiretapping civil rights organizers in the 60's than they could not have had they done repeated physical searches.
Using the "if it looks like a duck, walks like a duck, and quacks like a duck" rule, I would submit that the FBI make a wire tap in this case.
lawyer: doesn't even look like a close call to me (Score:2)
This doesn't even seem like a close call to me. The Bill of Rights is about privacy and the individual in the face of the awesome power of the state. The protections aren't to protect criminals, but to protect us normal folks against intrusions from the state.
long ago, we decided that wiretaps warranted special procedures, rather than a regular simple warrant. It would be bizarre to keep this reasoning while allowing the more intrusive act of sniffing keystrokes . . .
hawk, esq.
Get a clue. (Score:2)
The DMCA has to go, but clueless, uninformed rambling only helps the other side.
(On that note: has anyone written an anti-DMCA advocacy FAQ? We need some guidelines in order to present a unified front to the politicians and media. The Linux Advocacy mini-HOWTO [linuxdoc.org] is a terrific example of the type of document meant to keep advocacy focused and rational, and has been quite successful.)
Re:This is going to make me unpopular but... (Score:3)
The problem in this specific case is that the FBI had a search warrant, not a wiretap authorization. There's a distinct difference: the suspect knows that his home or office has been searched when a search warrant is acted upon. In the case of a wiretap, the suspect necessarily knows nothing.
What we have here is law enforcement gaining authorization for one type of activity - a search of a premises - and undertaking in another. I agree that keystroke logging is a valid investigative technique, but there needs to be a legal structure set up to make sure that it's not abused, as, I believe, it was in this case.
A real wiretap no less (Score:2)
I suspect if you're a criminal you should be using a USB or ADB keyboard to up the ante.
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My God, it's full of source!
Re:they DIDN'T have a judge's approval! (Score:3)
I'm not sure if there is a precedent judging whether keylogging is a wiretap or a search, but common sense says it is a wiretap.
True, therefore I predict that the legal system will decide that it is a search.
Re:they DIDN'T have a judge's approval! (Score:2)
Re:they DIDN'T have a judge's approval! (Score:4)
You don't have to be in favor of the existance of the mafia to be bothered by this.
Tapping LCDs? (Score:2)
"tap" CRT screens by picking up the RF radiation that they emit.
I was wondering: are LCD screens safe from this kind of tapping?
There's a difference... (Score:2)
The argument the lawyers are making is that recording his keystrokes is a wiretap, regardless of whether the information is recorded on a phone line or not. The reasons for this include the fact that they will be gaining personal non-crime related information as well as the fact that they're receiving a stream of information (not a snapshot like they would get in a normal search).
For example, if they went into this person's home and searched his computer, that would fall under the warrant that they had. That's legitimate, no argument here.
In a court case, the FBI can require that a defendant give up his password so that they can view the files. In order to do that, they need to have enough evidence to go to trial. Obviously in this case they didn't have enough evidence and they suspected they would if they were able to search the encrypted files. My point being that there were lots of ways that they could have gathered the same information without putting a tap on his machine. (Which is probably why they didn't get a wiretap order - the judge may have said "No, there's other ways you can get this info without doing a tap.")
If I'm not totally mistaken, the FBI would require some variant of a wiretap order to put a camera in the house and monitor his keystrokes. This shouldn't be any different. I'm not arguing that they shouldn't be able to wiretap/record/etc. However, if they're going to be able to do that, then they need to follow the rules. Get a wiretap order, it isn't that much of a pain in the ass and it means that any information you gather will be used in a trial without being thrown out on technicalities.
If a criminal goes free because these agents screwed up, then that's the way the system works. It's something that's designed to make sure that police and the FBI don't overstep their bounds... the knowledge that if they do, the case will be tossed out.
Disclosal of methods... (Score:3)
Re:they DIDN'T have a judge's approval! (Score:2)
Re:Who has the right to privacy? (Score:3)
Um, no they didn't; that's the whole point of this alleged mobster's suit.
They had a search warrant, which allowed the FBI to search for currently existing evidence. Scarfo's suit charges that in order to place whatever device they used, they needed a wiretap order, which has a stronger standard to meet.
Jay (=
What are the rules for audio bugs? (Score:2)
So what are the rules for "bugging" a person's home with an audio tap? Their home, not their telephone. Is a search warrant sufficient, or is a court ordered wiretap required? If the former, this may well stand. If the latter, then the FBI were clearly out of bounds and should have known better.
Invading one's private communications a la a keyboard wiretap is IMHO more akin to opening someone's mail or tapping their telephone, so whatever standards apply to those sorts of actions should apply to this as well. Guess we'll find out soon enough
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Re:Who has the right to privacy? (Score:2)
A search warrant != legal authorization to plant a bug.
Remember: it's a "Microsoft virus", not an "email virus",
Re:they DIDN'T have a judge's approval! (Score:5)
But searching someone's safety deposit box would also require a warrant, which would be separate from the warrant to search someone's home. I don't think your analogy is correct.
There is a distinction between hard copy communications which are physical objects that may be searched with a search warrant, and immaterial communications (electronic or just voice) which are by definition transitory and don't hang around to be searched. IMHO, if he had anything written down they could have taken it when they searched, but leaving a device which effectively converts a transitory communication (password keystrokes) into a permanent piece of evidence (keystrokes stored in a bug) is effectively a wiretap, rather than a search of physical property that the mafioso already had. The agents had to do something to convert his communications into physical form so they could take it with a search, and in doing so they stepped over the line into wiretap land.
Your argument has ludicrous consequences, because you could use it to do essentially any wiretap with just a search warrant - just place miniature voice recorders in all the phones, wait a week, come back again and harvest the tapes, and see what you got. I don't think that's consistent with the spirit of the law, which expects law enforcement to get a separate wiretap warrant for intercepting communications.
Remember: it's a "Microsoft virus", not an "email virus",
Biometrics won't help (Score:2)
If attackers have physical access to your machine, then biometric keys don't add any security. They can just compromise the software, or install a sniffer in between the biometric reader and the software, or something like that. It's the old "trusted machine" problem. If it were possible to secure against this type of attack, then DVD players would have it.
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Also at the BBC (Score:3)
Re:Good (Score:3)
What chaps me about law enforcement is that every time a new technology comes out they assume that the constitution doesn't apply to it, and they walk on our constitutional freedoms until the courts reaffirm the constitution. Can't they see that the phrases "secure in their persons and property" and "unreasonable search and seizure" don't have anything to do with what technology is involved?
IMO, "zero tolerance" should start with the lawmakers and law enforcers. How can they expect us to behave when they don't?
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Similar question - two monitors at once? (Score:2)
Re:Tech-savvy Feds (Score:2)
Re:Hrm ... (Score:3)
Re:Good (Score:2)
His name is Lon Horiuchi. If you're going to slander a man's reputation, at least spell his name right.
The facts of the matter are very much disputed, depending on which side of the government-paranoia fence you are and how good your common-sense filters are. However, the founder of the FBI's Hostage Rescue Team, Danny Coulson, has publically described Horiuchi's experience as the "tortures of the damned".
First he was excoriated in an FBI inquiry; then a separate governmental inquiry exonerated him. Then he was indicted on manslaughter statutes for Vicki Weaver's death, and then a judge declared that Horiuchi was immune to prosecution because he was acting in good faith.
And just last month, a Federal appeals court set aside the immunity decision, clearing the way for Horiuchi to be tried.
Contrary to what you believe, Horiuchi is not out of the woods. Barring intervention from the Supreme Court, it is overwhelmingly likely that Horiuchi will soon be tried for manslaughter in the death of Vicki Weaver.
the FBI jackboot who is persecuting Sklyarov is up to become HEAD of the FBI!
Robert Swan Mueller III is the United States Attorney for the Northern District of California. The charges against Sklyarov were pressed by one of his subordinates. It is overwhelmingly likely that Mueller was never consulted about the Sklyarov prosecution.
Again, if you're going to slander someone, then at least get which branch of the government they work for correct.
The next time you decide to rant off with your anti-government rhetoric, please do your research.
Legality of evidence (Score:2)
If the government played any role in the illegality, then the evidence is suppressed.
Framing a guilty man (Score:2)
The detective responsible for the case, Mark Fuhrman, committed perjury on the witness stand and was exposed to the jury as being an unrepentant racist. That, in turn, meant that virtually all the evidence in the criminal trial was suspect. After all, most of the evidence went through Fuhrman's hands at some point. And if Fuhrman would lie on the witness stand, then it's also very possible that he would doctor evidence to ensure a conviction.
Fuhrman's perjury is what sunk the OJ trial. OJ was acquitted, as was correct. If the police cannot be trusted--and the LAPD clearly cannot, given Fuhrman and Rampart and Rodney King and every other scandal that's come along--then reasonable doubt will always exist as to whether or not someone arrested by the police is really guilty.
Re:Good and bad aspects (Score:5)
There's a reasonable case that a search warrant for documents includes a search of the current contents of the target's computer. However, the keystroke sniffer, placed for the purpose of making it possible to monitor future communications, clearly falls into the "wiretap" category rather than the "search" category.
(The reason the two are different, and the latter requires a higher standard, is that a search can be executed in the presence of the suspect. This serves as a deterrent against illegal expansion of the search into a fishing expedition. Wiretaps, obviously, cannot be known to the suspect until after the fact, which makes them more open to abuse.)
/.
The FBI will use this to fight encryption (Score:5)
This falls perfectly into the government's propoganda that only criminals use encryption. Why is it that more of us don't use PGP for all of our emails? I would happily use it if any of my friends actually had public keys. We can't fight these fights unless we all pull together.
Re:So simple its scary (Score:3)
It's easy enough to generate a new passphrase or digital key, but swapping fingerprintes must be a bugger of an operation.
PGP *IS* Invincible (Score:2)
They couldn't break PGP. PGP _is_ secure. So they broke his computer, which is not secure. They have not said specifically if they used hard or soft methods - they may have used a hidden program, or they may have used Tempest technology.
For all of you mafioso reading, keep this case in your mind. Do all of your illegal activities on a laptop, and take it with you every where you go. The FBI can't install software on a laptop they can't get to, and they can't pick up tempest radiation off an LCD.
Re:So simple its scary (Score:3)
That's the way to go...
All cryptography expert will tell you that the best way to break encryption is by attacking the protocol. What most people forget, is that entering a secret (the passphrase in this case) is part of the protocol. It is so much easier to attack this part of the protocol than to attack other parts.
However I did not know that an agent was allowed to modify the scene when doing a search warrant. I always (maybe wrongly) though that search warrant were done to gather information based on what's present. Not to allow an agent to add spoofing devices without your knowledge.
Hrm ... (Score:2)
But, I think it's reasonable to agree that they probably need to get a wiretap to install the detection software.
However, I don't think they're evil. They have no need to control their own authority because they aren't planning to misuse it, hence the arguing for the search warrant only.
I don't agree on the disclosal of the methods, however. It's probably simple ... enough to fool a criminal. If we know what it does, I don't really see why we need to know how it does that.
Re:Hrm ... (Score:2)
I was pointing out that it would be absurd for the FBI to request more oversight, in light of typical /. comments saying the FBI is evil, or the embodiment of big brother, etc.
The less oversight they have, the more effective they probably feel they can be in fighting crime. It's up to the people (us) and the courts to put checks in place ... I just don't feel it's right to demonize the FBI when they seek less oversight in instances like this. (Even though I think they're wrong ... we'll see)
Re:Hrm ... (Score:2)
And about the wen ho lee thing ... I'm not sure what the scandle was, but he got off easy ... I don't know, maybe that's the scandle?
they DIDN'T have a judge's approval! (Score:5)
So before people start flapping their mouths bout how this mafia probably got what he deserved, the agents didn't have a court order to do this. Think about it. If FBI agents have enough "probably cause" and figure they should tap your computer cause you're under suspicision of doing something illegal, and they don't even have to go see a judge to approve it, then your privacy and civil rights have gone right out the window.
DMCA (Score:2)
Anyway, that key sniffer sure sounds like a circumvention device to me. Better go arrest the manufacturers too while you're at it.
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Re:they DIDN'T have a judge's approval! (Score:3)
The Speed Trap analogy (Score:3)
A wiretap (or in this case some other form of bug) is like having the police put a monitor in your car, monitoring your speed and location until they come and pick it up.
If you know the police are watching, you act accordingly. Would you really want to get a ticket for every single time you went more than the posted limit? Would you want to live in a country that allowed it?
The bill of rights is a restraint on government, because it's better to let ten guilty men go free than to wrongly convict one innocent man.
The bias against the persons involved is irrelevant, innocent until proven guilty. The bug was illegal.
--Mike--
Re:they DIDN'T have a judge's approval! (Score:3)
Does this mean that if you spend one minute talking about the weather, how are the wifes and the kids, etc. you get one wiretap-free hour of talking "business"?
Re:Good (Score:2)
I always thought it might be a better idea to go ahead and use the evidence, but then go ahead and throw the book at all of the people who were responsible for collecting it illegally (at the very least blacklisting them from law enforcement, and with the possibility of jail time).
You'd only have to do that a few public times before most enforcers would only play by the book, unless they thought it was worth sacrificing themselves to take down somebody exceptionally bad for society.
Of course, there should be a special place in hell for those enforcers who make up evidence.
Re:Good (Score:2)
I don't agree. That's like saying that punishing someone for suppressing free speech makes the Bill of Rights meaningless. I'd argue that allowing minor points of law to overrule the facts is a major factor in reducing the respect of the average citizen for the rationality of the law.
Again, I disagree. You seem to think that government agents act irrationally. If penalties are properly chosen, you _will_ discourage most government agents from illegally gathering evidence. If they are confronted with the choice, then they will have to decide whether the destruction of their lives is worth putting their suspect behind bars. If they're looking at an organized crime leader directly or indirectly responsible for the deaths of thousands who will otherwise walk on a technicality, they might decide that it was worth it. And you won't have scumbags laughing with their high-priced lawyers scott-free on their way out of the court.
No, this is not the way it should be. There's a factual difference between illegally obtained evidence & false planted evidence, and this should be taken into account when determining someone's guilt.
As long as the evidence is beyond question, there's no benefit to society to let a guilty-beyond-all-reasonable-doubt person go free. In fact, it's easy to argue that the current system lets the guilty person go free AND lets the illegal-evidence-gathering person remain in law enforcement and/or relatively unpunished. The best result for society is that the truly guilty be punished, in both cases.
Now, to prevent conflict of interest, I'd certainly agree that any agency responsible for monitoring & discouraging illegal-evidence gathering activities should be autonomous from the agency they are monitoring, and should have the legal authority to back up their duties, unlike the silly Citizen Review Boards & Internal Affairs departments which so many enforcement agencies use to cover their asses.
Re:So simple its scary (Score:4)
Might be illegal now. (Score:2)
Awhile back, there was a case where the cops used a heat scanner to detect marijana plants inside a house. The lights necessary to grow them efficently apparently give off a recognizable signature, and your average house doesn't have quite so many of them. However, it was ruled that this was an illegal "search".
Re:Who has the right to privacy? (Score:3)
We are currently in very dangerous times. Every action by our government must be highly scrutinized to make sure it is in the best intrests of the populous.
Yes, this guy's a mobster. The courts will ultimately decide his guilt. Maybe it's fine that this guy goes away.
Is the FBI right to do this without permission of an advisory? Absolutely not.
The FBI is not autonomous, neither is our government. Both need oversight. Our constitution provides a means to oversee our government namely in checks and balances as well as elections. In a last resort we have the right to choose a new government as a government derives its authority by the consent of the governed.
If we choose to not fight each and every small battle for our privacy and rights, later we will not have the option as the war will be lost.
Re:More people SHOULD use encryption (Score:2)
People already dislike the idea of government-held key escrow so that idea is not likely to fly again any time soon either.
Hmmm. Sounds like a business opportunity to me.
How about "MS Visa Passport .NET", borrowing a few ideas from AOL marketing about it being "easy", "fun", "hip", "sexy", etc?
I always knew (Score:2)
Re:Is my DNA protected by the DMCA (Score:3)
Steganography is more than that. (Score:2)
Actually, hiding messages in images is just one application of steganography - a while back there was a story about a girl who did a science project about hiding a message in the DNA of a pigeon (http://slashdot.org/articles/00/03/14/1924204.sht ml) [slashdot.org].
In a wider sense, it's the practice of hiding data in other data (typically a lot of other data to make it harder to find), but still being able to retrieve it on demand.
Re:Might be illegal now. (Score:2)
However, since the FBI are accused of not seeking clearance to run this "wiretap", I'm guessing they wouldn't bother if this was illegal or not either. And since it's a passive, non-invasive process, you'd never know they were doing it until they tried to use it as evidence : (
Re:Tapping LCDs? (Score:3)
Basically, there's 3 good ways to overcome this that I'm aware of:
- Make sure your display is gibberish. Unfortunately this makes it kinda difficult to use : )
- Set up something to broadcast a load of EM white noise to drown-out the signal from your machine.
- Only use your machine from inside a big thick metal box (to block the signal), and make sure that you take a portable power supply in there with you (signals can even propagate down the power supply cable).
Yes, it's time to be paranoid.methods for keystroke logging? (Score:2)
Wouldn't it be possible to check for strange processes running? Or Win2K now has "hit ctrl-alt-del to logon", would it be possible to implement systemwide encryption in a manner similar to that?
Or if it's in hardware, do you keep your keyboard on your person 24/7? Or use only a laptop and do the same?
Re:Good and bad aspects (Score:2)
Re:they DIDN'T have a judge's approval! (Score:2)
Keyboard Type (Score:2)
More people SHOULD use encryption (Score:2)
Re:methods for keystroke logging? (Score:4)
Police moral decay? (Score:4)
I'm not sure that I agree with all this, but it's an interesting perspective.
The problem with biometrics (Score:2)
As it stands right now I see passphrases as being MORE secure than biometrics, the way the FBI stands. Think about it -- if they're willing to illegally wiretap your computer to get your passphrase, who's to say they won't drug you and use your body against you? Fingerprints and retinal scans are the same when you're drugged as when you're sober. Passphrases can die with you... your fingerprints can't.
Re:they DIDN'T have a judge's approval! (Score:3)
Yes they did. See for yourself.
From the document linked:
The seizure and retrival of key related information and encrypted file(s) ordered pursuant to this order do not involove captured communications protected under title 18, United States Code, Sections 2510 et seq..
This would indicate to me that this was an illegal wiretap. I'm not sure if there is a precedent judging whether keylogging is a wiretap or a search, but common sense says it is a wiretap.
Enigma
Re:Sad day (Score:2)
I'm in Raleigh, what part of NC are you in?
A host is a host from coast to coast, but no one uses a host that's close
Re:Two solutions (Score:2)
but your monitor isn't shielded and the screen can be read outside your building at staggeringly large distances.
If you do attempt something like this, shield your monitor, or shield your room.
A host is a host from coast to coast, but no one uses a host that's close
encrypted keyboards? (Score:2)
I AM NOT A CRYPOTGRAPHER: So why doesn't somebody take a keyboard, replace the microcontroller (typically a cyrix 63412) with a beefier one that can do hardware encryption, and use a protocol with a device driver that establish encrypted transmission across the keyboard's cable?
I'm sure there's a protocol somewhere in "Applied Cryptography" that covers this scenario, something that defeats a sniffer.
I wouldn't be surprised if this already existed.
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Re:This is going to make me unpopular but... (Score:2)
Wiretap or no wiretap, the indeed Feds had permission to enter surreptitiously [epic.org] in this case.
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Re:they DIDN'T have a judge's approval! (Score:3)
Yes they did. See for yourself. [epic.org]
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This is going to make me unpopular but... (Score:3)
...I actually think this is a good thing.
We've been told for years that encryption must be controlled because it gives Bad Guys the power to evade law enforcement in a way that was not possible using traditional means of telecommunications. This arrest puts lie to that claim. You can have publicly-available encryption without disrupting law enforcement's existing ability to conduct court-ordered surveillance.
I know some of you have a beef with court-ordered surveillance, and that's cool. But if you don't, then how is this case any different from surreptitious voice recording?
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Re:This is going to make me unpopular but... (Score:3)
The court order is here [epic.org]. It grants permission to:
It seems from this that the judge indeed intended for a device to be used to get the private key. Scarfo's lawyers are just trying to argue that he should have specifically said "wiretap" if the device actually transmitted information. It's lawyerly semantics.
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Re:they DIDN'T have a judge's approval! (Score:2)
And this is a problem how?
Either they find out that people are not so innocent after all, or tracking the innocent people wastes inordinate amounts of FBI time, making it easier for criminals to slip under the radar.
Disclaimer: when I'm not being sarcastic I fully support the rights of the non-to privacy and security in their persons. That some crime is undetectable without the invasion of privacy is a price that society must pay to protect the liberty of all.
Re:PGP *IS* Invincible NOT (Score:2)
Yes and no, they cannot get a signal from the LCD it self but you can easly get it right off the wires from the video chip.
Re:they DIDN'T have a judge's approval! (Score:4)
Why FBI doesn't want to talk about the tool used (Score:2)
First rule of securing a box.... (Score:2)
You can get the device they used for US$139 (Score:3)
Re:Sad day (Score:3)
The Lottery:
Sad day (Score:5)
So simple its scary (Score:3)
This is clearly a case of wiretapping though. My keystrokes are the same a talking (to me anyway, IANAL) so if they need a court order to bug my house, they damn well better need one to bug my keyboard.
Time to start putting tiny pieces of tape or those warranty type stickers on my keyboard and PC :) Can't be too paranoid ;)
Re:Good (Score:2)
This is why there needs to be balance in the law. If you are going to punish those who commit acts against law enforcement more harshly than against joe citizen, you should also punish lawbreaking law enforcement agencies more harshly.
Of course, that never happens. The point is, if things are the way you want them to be, and evidence is allowed, even if obtained illegally, then you've just made the Bill of Rights irrelevant and given any rogue agent of the government carte blanche to conduct witchunts.
Re:Good (Score:2)
It would only violate double jeopardy if the defendant was found not guilty. The Constitution does not allow for someone to be tried again for the same charge if once found not guilty.
However, it's less likely, of course, that the prosecutors would re-try a case if the primary evidence is tossed. They'd have to have enough evidence left to even bring the charges again, much less make it to trial.
This brings up an excellent point... It seems to me that law enforcement is getting TOO dependant on high tech means of evidence gathering, to the point where they neglect conventional means. Take the OJ case for example, the prosecution made the defense's case easier given the fact that they staked their WHOLE case on DNA evidence. DNA evidence, that, it turned out, was processed at a lab with a less than stellar record.
It's likely that in this case, the FBI's case against this mobster relies almost EXCLUSIVELY on this illegally gained evidence. If so, tough shit. Convienience is no excuse to allow government operatives to violate civil rights.
Re:Good (Score:2)
You can't do that and still maintain the integrity of the Bill of Rights. To allow someone's rights to be violated by the government, and then to allow that to be used as evidence makes them meaningless.
You will NEVER discourage government agents violating the Constitutional rights of citizens unless you then DENY them the rewards of the violation, ie, the illegal evidence that leads to a conviction. To the courts, there is no difference at ALL between illegally obtained evidence and false planted evidence, and that's the way it should be.
The best way to discourage this practice is to BOTH disallow that evidence, AND to prosecute those responsible.
I'd rather see guilty go free (like OJ did) than have innocent people imprisoned. Though I agree that he was guilty, I agree that the jury reached the propler verdict, given all the evidence of mishandled (and even planted) evidence and rampant police corruption. As an upside, it's no coincidence that the pursuit of corruption in the LAPD that is going on today is a DIRECT result of that verdict.
Re:Good (Score:2)
This happened largely because the rules of evidence in a civil case (where imprisonment is not a possible penalty) and a criminal case are completely different. And, the burden of proof is less than "reasonable doubt", but is "perponderance of evidence".
Which, incidentally, I disagree with. I think that civil double-jeopardy following an acquital of the same charge in criminal court should be outlawed, as is actually implied in the Constitution. And that rules of evidence and standard of conviction should be altered to the same tough standards in criminal cases. This would go a long way to reducing abuse of civil court by the powerful as their personal persecution squad.
Re:Good (Score:2)
Something like that I can live with, as the "spirit" of the law was indeed followed (ie, probable cause WAS shown, etc), however, it is still dangerous to allow. The 4th Amendment is very specific that the PERSON and/or PROPERTY to be searched/seized must be enumerated.
Re:Good (Score:3)
That, of course is not a good thing. But everyone makes mistakes, even the most skilled.
The reason why the law HAS to be what it is so that police who WILLFULLY violate the law do not get to use that illegal evidence to prosecute someone.
It's unfortunate, but the only way to prevent jailing INNOCENT people because of the actions of rogue law enforcement is to increase the chance of freeing the guilty. And the kicker is, the more power you give the jackboots, the more likely you are going to jail more innocents than guilty.
This comes because under the US Constitution, there is a PRESUMPTION of innocence. It's the burden of the state to prove guilt, and they should not be allowed to use evidence obatined illegally.
Re:Good (Score:4)
Don't hold your breath. The FBI has a long and distinguished history of breaking the law, and I've yet to see a FBI agent be punished for what they've done, unless it's spying.
FBI agent Lou Horouchi participated in a cold blooded murder, that of Vicki Weaver and her baby, yet wasn't even prosecuted. In fact, he and his fellow jackboots got awards and promotions. Hell, the FBI jackboot who is persecuting Sklyarov is up to become HEAD of the FBI!
Which is why we need the courts to defend the Constitution. While I'm all for putting mobsters away, the ENDS DO NOT JUSTIFY THE MEANS. To advocate that is to advocate lawlessness and anarchy.
The only way the FBI will stop violating the Constitution is to lose cases against people they violate.
This is why under US law, evidence obtained illegally is NOT evidence in the eye of the courts, this is ultimately the ONLY check and balance that will provide incentive for law enforcement to obey the law.
Good (Score:3)
There are legitimate needs for a wiretap, and there are checks in place that are supposed to prevent abuse. Calling the process "wiretap" was shortsighted but unfortunately the name sticks. Whether you're spying using a phone tap, concealed microphones, a pair of binoculars or some as yet discovered/revealed technology you're accomplishing the same thing. This particular event needs to be punished, and unfortunately in this case it means a guilty person goes free. Still, that is much better than a court case which ends up squashing citizens rights due to precident.
Re:they DIDN'T have a judge's approval! (Score:2)
Note however that this case involves a fine technical point: they got a warrant, but it wasn't the right kind of warrant for a wiretap, and this does seem to be a wiretap as far as the technology goes. On the other hand, wiretaps are especially limited because when you tap a phone, you are tapping two persons, and often one of them is not a suspect. Tapping the keyboard cable doesn't involve an innocent third party. I can see a court reasonably going either way on this one...
Anyway, the big problem is that the penalties are backwards. Cops don't go to jail for illegal searches. DA's don't get disbarred for fooling some judge into approving a warrant that doesn't really cover what they are going to do. It's pretty unlikely that the judge who signs a warrant on insufficient grounds will even get a reprimand. ALL THAT is what should happen when the cops and prosecutors step over the line -- not tossing out the evidence.
Re:Two solutions (Score:2)
Ways to detect this? (Score:2)
1) Run Linux or *BSD or another unix-like system. In a Windows PC you (or in this case, the FBI) can always "cancel" the login and gain some control over the PC, although you will not log into the associated NT network and thus cannot access network resources. So I assume there's a way the FBI could easily install a keyboard sniffer on a Windows PC. But would it work for unix? Even if the FBI knows unix inside and out and could write a keystroke sniffer for it, wouldn't they need to hack your system to install this software? Even if they could hack in, wouldn't they need root access? Discuss.
2) Use anti-virus software Would this work? Assuming you must run Windows, would anti-virus software detect the keyboard sniffer? Is there any other software that would? Is there a way to make an automated scan of the hard disk to see what new software's been added since you last logged into Windows? (remember, the FBI can't log in as you yet, because they have not yet sniffed your user ID and password, so the next time you log in is still the next time anyone has logged into your account). Discuss.
3) The best approach might be to use a diskless workstation to access an account on one of several physically remote, physically secure boxes. With SSH and VPN and PGP or GPG this should be easy to do in a secure way, and with a diskless workstation how can the FBI load their sniffing software? You could even have the last part of the secure communication be an agreement on which IP address to use next time, sort of a one-time-pad. The hard part would seem to be setting up the distributed, off-site host system, but I think the mafia should be able to pull that off. Comments?
Irony? (Score:2)
Neither [cnn.com] has Dmitry [slashdot.org].
Re:methods for keystroke logging? (Score:2)
"We really don't have a full understanding of this [expletive] technology and we really don't give two [plural expletive] about wanting to learn it.", a spokesman for the New York 5 Families was quoted as saying.
He continued with, "But we ain't gonna get pinched because of it, so we hired a couple of those smart-ass techno-nerds to make sure that the way we run our *businesses* is as tight as legally can be."
Tomorrow, we venture into the world of hacking Monks and how they are trying to circumvent technology that would keep God in our lives.
Larry?
Re:Tech-savvy Feds (Score:2)
Tech-savvy Feds (Score:4)
You should be aware though that the US Supreme Court appears to be taking the issue of high tech's effects on privacy very seriously. In Kyllo v. United States, 121 S. Ct. 2038 (2001) (available on LexisOne [lexisone.com] - free registration required) the USSC held that the police's use of a thermal imaging unit to detect the use of heat lamps to grow marijuana inside the defendant's home violated the 4th Amendment's prohibition on unreasonable searches and seizures.
I predict that the USSC will continue to take privacy matters very seriously as technology progresses.
They can sniff all they want... (Score:4)
Re:Tapping LCDs? (Score:2)
I was wondering: are LCD screens safe from this kind of tapping?
AFAIK (CMIIW - correct me if I'm wrong) they are. "Tapping" CRTs is possible because of the high level of radiation they cause wehn displaying a picture - a cathode beam is directed across the inner surface of the screen, causing a material to light up, the stronger the beam, the brighter. The three basic colors RGB are realized by using differntly-colored materials that the beam touches with different intensity - mix them, and you get the color.
LCD, on the other hand, work differently: They have a backlight, and electrically activated liquid crystals (hence the name, d'uh!) that filter that light partly, let it through completely or not at all. By using differtly-colored filters, you again achieve color. However, the electric currents which is needed to toggle those LCs is comparativly low. So you might (and it might not be possible at all) be able to "tap" a LCD this way, but you have to be very close to it to be able to register the currents. If you _are_ that close, you can as well just read what's on the screen.
Greets
Anno.Re:You can get the device they used for US$139 (Score:2)
Re:they DIDN'T have a judge's approval! (Score:2)
how did they tap his keyboard without breaking into his house illegally (without court order) or is the first recorded TEMPEST tap by the FBI?
IIRC, they did enter his house (with a search warrant) and installed a (presumably hardware) bug.
They are claiming that it did not constitute a wiretap (requiring a court order) because no communication was intercepted - only usage a computer. The complication is that the computer was used for email...
Hey Pauly! (Score:2)
Re:Who has the right to privacy? (Score:2)
The reason they do not want the public to gain knowledge of how the device works is because the FBI may want to re-use this device in future investigations. Should another mobster out there find out how the device works, he/she can set themselves up to protect themselves from the device, hence rendering the FBI's efforts useless, and allowing a criminal to go on without facing justice. I dont think the good people of the US would like that to happen.
Re:they DIDN'T have a judge's approval! (Score:3)
By your argument, the FBI could place a tape recorder in my house during one warranted search and pick it up during another. Same principle, and that would be an illegal wiretap.
Re:Sad day (Score:2)
Government should never be trusted to behave responsibly with the powers it is given. Just as Corporations' trustworthyness is inversly proportional to the amount of power they have, so too are governments. As someone with a red flag in thier FBI file, I obviously have a vested interest in being able to protect myself. I believe everyone has a vested interest in thier right to live a private life. Period.
Carl G. Jung
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